Last week the first de minimis component exclusion was approved under California’s SB 54 EPR law and posted on the CalRecycle website. What can we learn from this initial public approval of a de minimis exclusion?

First, how does the de minimis provision work? The SB54 provision is pretty narrow and not to be confused with those de minimis-like provisions in other states that exclude from producer status companies that sell less than a ton of covered material in the state. (No such provision applies in California.) This provision applies to material that is “part of” or “directly connected to” packaging but is of minimal weight or volume. It can’t be an independent plastic component (something that is plastic and can be detached or removed from the packaging), won’t prevent otherwise recyclable packaging from being recyclable or make it more difficult, has to have a de minimis weight or volume, does not pose health or safety risks or risks to the environment and is not prohibited by another California law. The full definition is at 14 CCR 18980.2.2(b).

The material that was approved, cold-end coatings, are coatings for glass packaging, specifically a high-density polyethylene (plastic as defined at PRC 42041(t)) emulsion applied to glass packaging, like bottles, at a certain point in the manufacturing process after the glass has cooled (thus cold-end). These coatings help prevent breakage and other damage primarily by reducing friction.

What can we take away from this?

Having an exclusion matters a lot in this situation because it prevents the glass packaging from having a plastic component under the SB 54 covered material categories. Without the exclusion, the presence of the emulsion might otherwise categorize it as glass with a plastic component in the Covered Materials Categories. This matters for fees, source reduction requirements, and reporting, among other EPR requirements. Generally, materials with plastic components are subject to more rigorous requirements, including higher fees. The de minimis exclusion offers a way out of this for components that meet the requirements.

Next, we can see an example of what does qualify for the exclusion and what kind of data was used. For example, the exclusion provided that the emulsion must be between 0.0001% and 0.001% by weight and have a thickness of between 40 and 80 nanometers. That gives us a couple of datapoints as to what de minimis means. The numbers involved clearly show a minimal proportion of the packaging and support that the component is a part of the packaging (ie, not independent). In addition, it appears that part of the argument was that the emulsion may prevent waste by preventing damage to the larger packaging. Decreasing damage presumably increasing the chance that the packaging will be recycled and not disposed of after breakage. Although such a criteria is not specifically required in the rule, it is notable that it was called out in the approval.

What if there is a component that is similar or analogous to the approved one, but not with the same criteria? It would be worth assessing, and one shouldn’t assume that because this particular exclusion had these criteria, that other processes might not qualify if they have similar, but not identical, criteria. Alignment with the exclusion factors is what matters. Learning from baseline cases like this can help one see where other, similar cases might be made.

From a process perspective, the application for a determination must come from the PRO, a producer cannot make it directly to CalRecycle unless they are an Independent Producer. So a producer should approach the PRO (CAA) with a potential exclusion, including technical justifications. The PRO then applies to CalReycle. Prior to doing so, it is best to put together a compelling case informed by other successful arguments. CAA notes in its Producer Responsibility Program Plan, submitted recently to CalRecycle for approval, that it has at least 14 pending applications under the de minimis provision (including the one ultimately approved). A link to the approval is here.

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